Diaz v. Methodist Hosp.

• Decision Date: 06 March 1995
• Docket Number: No. 93-2928,93-2928
• Citation: 46 F.3d 492
• Parties: Regina DIAZ, et al., Plaintiffs, Regina Diaz, Plaintiff-Appellant, v. The METHODIST HOSPITAL, et al., Defendants, Baylor College of Medicine, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 492

46 F.3d 492

32 Fed.R.Serv.3d 232

Regina DIAZ, et al., Plaintiffs Regina Diaz, Plaintiff-Appellant, v. The METHODIST HOSPITAL, et al., Defendants Baylor College of Medicine, et al., Defendants-Appellees.

No. 93-2928.

United States Court of Appeals Fifth Circuit.

March 6, 1995.

James P. Grantham, Steve A. Bryant, Bryant & McLean, Houston, TX, for appellant.

Robert J. Swift, Edward J. Kroger, Fulbright & Jaworski, Houston, TX, for Temple Williams, Jr., M.D., et al.

John C. Marshall, III, Marshall, Gonzalez & Carlson, Houston, TX, for J. Pedro Frommer, M.D. & Victor M. Rivera, M.D.

Appeal from the United States District Court for the Southern District of Texas.

Before BARKSDALE and PARKER, Circuit Judges, and COBB, District Judge. ¹

COBB, District Judge:

Appellant, Regina Diaz, brought suit in federal district court alleging that, while in the care of Appellees, she received negligent medical treatment that caused her to become deaf. ² The jury found in favor of Appellees. Appellant's post-trial motion requesting relief from judgment or, in the alternative, a new trial was denied. For the reasons set out below, we AFFIRM the ruling of the district judge.

BACKGROUND

On January 3, 1987, Regina Diaz was severely injured in an automobile accident in her hometown of Merida, Mexico. Ms. Diaz was rushed to a Merida hospital. The doctors there determined that amputation of Ms. Diaz's left leg was necessary to save her life. Despite the treatment she received in Merida, Ms. Diaz's condition worsened over the next 48 hours. Her accident produced life-threatening renal failure and infection.

In an effort to save her life, Ms. Diaz was transported by air ambulance to the Texas Medical Center in Houston, Texas. On arrival, Ms. Diaz was in septic shock with decreased kidney function, and her remaining leg had developed gangrene.

Numerous medications were administered in an effort to regain kidney function and stave off the infection. These medications included several loop diuretics and an aminoglycoside antibiotic, Amikacin. Ms. Diaz's renal function was restored and, although it was necessary to amputate her right leg, she eventually overcame the infection. Unfortunately, the medication which saved her life apparently had a side-effect; Ms. Diaz contends that the antibiotics produced severe bilateral loss of hearing.

On December 23, 1988, Regina Diaz, and her parents, Illeana Diaz and Rodrigo Diaz, filed suit against Baylor College of Medicine, Methodist Hospital and various physicians. She maintained that these defendants could have prevented her loss of hearing with proper daily monitoring of her blood serum aminoglycoside levels.

Discovery was conducted for almost five years. The parties and numerous medical experts were deposed. The case was tried before a jury from August 9 to August 20, 1993. The jury returned a verdict in favor of the defendants.

On October 4, 1993, before final judgment was entered, Ms. Diaz filed a motion requesting relief from judgment or, alternatively, a new trial. ³ Ms. Diaz based this motion upon newly discovered evidence that, in her opinion, proved Dr. Williams and Dr. Bradshaw had perjured themselves while testifying at the trial.

Throughout their depositions and testimony at trial, Drs. Williams and Bradshaw steadfastly maintained that, in January, 1987, it was impossible to procure laboratory testing After the jury entered its verdict, Appellant obtained an affidavit from Dr. Edward Talmage. Dr. Talmage stated that, on the dates Appellant was hospitalized, it was possible to order weekend aminoglycoside blood serum testing at Methodist Hospital. ⁴

for aminoglycoside blood serum levels between Friday evening and Monday morning. Appellant's case turned on whether Appellees' failure to perform weekend monitoring of her blood serum levels was negligent conduct and the proximate cause of her hearing loss. However, Appellant was unable to produce any evidence at trial which contradicted the testimony of Drs. Williams and Bradshaw.

Appellant asserts that Dr. Talmage's affidavit amounts to proof that Drs. Williams and Bradshaw perjured themselves at trial. She maintains that the affidavit is new evidence that demands relief from judgment or, alternatively, a new trial.

The trial court disagreed. On November 19, 1993, the trial court denied Appellant's motion and entered a final judgment reflecting the jury verdict. ⁵

DISCUSSION

A. MOTION FOR NEW TRIAL

Appellant contends that the trial court committed reversible error when it ignored her "newly discovered evidence," namely Dr. Talmage's affidavit, and denied her motion for a new trial. Pursuant to Rule 59 of the Federal Rules of Civil Procedure, the district court has discretion to grant a new trial on this ground. Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir.1986). Before we will disturb the trial court's ruling, however, we must find a clear abuse of discretion. Osburn v. Anchor Laboratories, Inc., 825 F.2d 908, 917 (5th Cir.), cert. denied, 485 U.S. 1009, 108 S.Ct. 1476, 99 L.Ed.2d 705 (1988); Johnston, 786 F.2d at 1257; LaFever, Inc. v. All-Star Ins. Corp., 571 F.2d 1367, 1368 (5th Cir.1978). As this court noted in Brun-Jacobo v. Pan Am. World Airways, Inc., 847 F.2d 242, 244 (5th Cir.1988):

When the district court denies a motion for new trial, appellate review is especially deferential because in that instance deference to the district court operates in harmony with deference to the jury's determination of the weight of the evidence and the constitutional allocation to the jury of questions of fact.

In deciding whether newly discovered evidence is sufficient to warrant a new trial, the district court should consider whether the evidence: (1) would probably have changed the outcome of the trial; (2) could have been discovered earlier with due diligence; and (3) is merely cumulative or impeaching. Osburn, 825 F.2d at 917; Johnston, 786 F.2d at 1257; LaFever, 571 F.2d at 1368. The burden is on Appellant to demonstrate that the new evidence clearly weighs in favor of a new trial.

We are unconvinced that Dr. Talmage's affidavit meets any of the requirements listed above.

Dr. Talmage's affidavit, at best, impeaches Drs. Williams' and Bradshaw's testimony that an aminoglycoside blood serum test could not be performed over the weekend. Assuming arguendo that this case is retried and Dr. Talmage is allowed to testify, there is no guarantee that the jury will accept his testimony and reject the testimony of Drs. Williams and Bradshaw. Given the state of the evidence, the question of whether aminoglycoside blood serum levels could be tested on a weekend would be a matter for the jury to resolve from its perception of witness Appellant is also unable to make a showing that, even with due diligence on her part, Dr. Talmage's testimony would have been unavailable prior to trial. The record indicates that the parties conducted discovery for over five years and took the depositions of numerous expert witness. Appellant maintains that she was not alerted to the possibility that Drs. Williams and Bradshaw were lying until after the trial was concluded. She further indicates that she had no reason to question the veracity of the statements these doctors gave at deposition and that she accepted their story as true. While cognizant of Appellant's trusting nature, we believe a prudent litigant would independently investigate such a pivotal issue and be less than willing to adopt blindly the statements of the opposing party. Appellant is unable to demonstrate that, had she vigorously pursued this avenue of discovery prior to trial, she would have failed to uncover evidence similar to the statements contained in Dr. Talmage's affidavit. We are unconvinced that Dr. Talmage's affidavit is the type of "new evidence" that a truly diligent litigant would be powerless to unearth given five years of discovery.

credibility. ⁶

Furthermore, Appellant failed to demonstrate that Dr. Talmage's testimony would probably change the outcome of this case. This was a complicated case requiring nearly two weeks of trial and numerous expert witnesses. Several experts testified that the medical treatment administered by Drs. Williams and Bradshaw was appropriate under the circumstances. The trial judge was afforded the opportunity to gage the credibility of these witnesses, a luxury this court does not enjoy. We decline Appellant's invitation to second-guess the trial court. Accordingly, we are unconvinced that the district court abused its discretion when it determined that Dr. Talmage's testimony was not such as would probably change the outcome of this trial. ⁷

B. MOTION FOR RELIEF FROM JUDGMENT

Appellant also asserts that the trial court erred by not granting her Rule 60(b)(3) motion for relief from judgment. She reasons that the statements made at trial by Drs. Williams and Bradshaw amount to perjury, making relief under Rule 60(b)(3) appropriate.

"A rule 60(b)(3) assertion must be proved by clear and convincing evidence, and the conduct complained of must be such as to prevent the losing party from fully and fairly presenting its case." Longden v. Sunderman, 979 F.2d 1095, 1103 (5th Cir.1992), citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). The purpose of the rule is to afford parties relief from judgments which are unfairly obtained, not those which may be factually incorrect. Johnson v. Offshore Exploration, Inc., 845 F.2d 1347, 1359 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988).

The decision to relieve a party from final judgment is within the sound discretion of the trial court. Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir.1979). We will disturb the district court's decision only for an abuse of discretion. Johnson, 845 F.2d at 1359; Montgomery, 592 F.2d at 279.

Appellant contends that the deposition and trial testimony of Drs. Williams and Bradshaw, on the issue of...